Terms of Use

1. Digital Garden Intellectual Copyright:

Digital Garden holds intellectual copyright of any material, including, solution designs, source code and original images created for the client until payment of the final invoice. At this time we will transfer this intellectual copyright to the client. All website quotation and costing documents are supplied on a confidential basis and permanently remain the Intellectual property of Digital Garden. NOTE. Digital Garden does not release PSD format files of any work unless otherwise stated and agreed.

2. Clients Responsibilities with Regard to Copyright:

(a) In situations where the client provides images, text, animations, layouts or any other content for their website they are legally responsible for ensuring that this material does not infringe any copyright or other laws.

(b) Certain materials including images and font licenses provided by Digital Garden may have been purchased under license from stock image suppliers. These images are generally only licensed for use on a website. The license may not permit them to be used in publicity material. The website owner is legally responsible for ensuring that this does not happen. If you wish to use any images from the site for other purposes please contact us for clarification.

3. Non Solicitation of Digital Garden’s Staff:

(a) The Client must not, and must ensure that its Related Corporations do not, for any reason, during the term of the Agreement or within twelve months after its termination, directly or indirectly induce, solicit, engage or employ (or procure the inducement, solicitation, engagement or employment of) any officer, employee or contractor of Digital Garden unless the Client or its Related Corporation has obtained Digital Garden’s prior written consent.

(b) If the Client or any of its Related Corporations directly or indirectly induces, solicits, engages or employs (or procures the inducement, solicitation, engagement or employment of) any officer, employee or contractor of Digital Garden, the Client must pay a placement fee of A$60,000 (exclusive of GST) to Digital Garden for each officer, employee or contractor it has induced, solicited, engaged or employed (or procured the inducement, solicitation, engagement or employment of) , which the Client acknowledges is a fair and reasonable estimate of the cost to Digital Garden of replacing each such officer, employee or contractor of Digital Garden.

4. Internet Marketing:

If internet marketing services (SEO, SEM, PPC etc) has not been agreed as part of the contract the client must be aware that Digital Garden is not responsible for ongoing web site promotion. Should the client require the site to be promoted on an ongoing basis a separate contract must be agreed. The order in which websites are ranked in the natural search results is controlled by the search engines. While we can implement some optimising measures in the initial design and build stag of the website, it is impossible to make any guarantees on ranking position. Extra to this Digital Garden cannot guarantee any website ranking positioning for any key words under any conditions. This is a result of the varying nature of the search engine algorithms, and also a result of external factors determining ranking positioning, such as the clients own authored content.

5. Registration charges:

All third party costs shall be met by the client unless otherwise stated.

6. Cancellation:

Should the client wish to cancel the project after payment of any first deposit amount, then any initial project deposit amounts are non-refundable. Should the client wish to cancel at any other point during the process they shall remain liable for the work that has taken place and shall be invoiced accordingly.

7. Conceptualising:

Conceptualising is the process of producing website page concepts for clients. Concepts can also include banner mock ups and icon mock ups. Digital Garden have provided a rigorous information and requirements gathering phase prior to the actual design stage, and it is intended that this phase will allow Digital Garden to understand the clients design requirements. As a result only two home page or interface concept designs will be supplied, and then there will be provision for revisions. These revision requests are limited to altering or adding parts to the chosen concept, and cannot constitute as a request for a new concept. Revisions can only be requested during the stated design phase of the project, unless the design phase has been extended due to Digital Garden delays. Requirement for additional concepts or works outside of the designs phase will be quoted as extra.

8. Quotations:

The price quoted to the client is for the work specifically agreed to only. Should the client add to the scope of work then additional charges will apply. Correspondingly, should the client scale back the scope of work a refund is not guaranteed. The condition where a refund is not guaranteed includes when a total project discount of costs has been provided. Refunds may also only be provided if no work has commended on an item that has been removed from the project scope, or de-scoped. Additional charges will be charged at Digital Garden’s hourly rate. NOTE. All Digital Garden services require project management, and our costs for this service are 20% of any quoted service costs.

9. Project Delivery:

The project schedules, time lines and delivery dates expressed by Digital Garden in this document, any other document or by any other means of communications are indicative estimates only. There may be occasions where product delivery or demonstration of completion of works does not correspond to these expressed schedules, timelines or dates. Projects delivery may be delayed as a result of 3rd party vendors internal delays or delays in the provision of client feedback, materials, materials compatibly or milestone sign off.

10. Exclusion of Liability:

Except in relation to property damage (excluding loss of data), injury or death it is agreed by the client that Digital Garden will not be liable for any damages or loss incurred by the client including, loss of revenue, loss of opportunity and loss of profit. The client also agrees that Digital Garden will not be liable for any damages incurred indirectly by any 3rd party’s related to the client or the clients business, where the 3rd party may seek legal action or compensation of any kind from the client.

11. Termination:

Either party may terminate this agreement upon the provision of 30 days written notice to the other party. Digital Garden may terminate the project immediately and without prior notice if the client does not make payments for invoices issued, or if the client obstructs Digital Garden’s ability to work on or complete the project.

(a) If the Client terminates the project prior to its completion, then all deposits made to that date are non-refundable. The Customer will also be required to pay for any unpaid work or costs incurred by Digital Garden in relation to the project. Upon receiving any outstanding balance Digital Garden will provide works to the point of termination in disk format, conditional that the works can be provided in that format. If the works require additional costs to retrieve from or co-ordinate retrieval from a 3rd party, then then these costs will be incurred by the client.

(b) Digital Garden may immediately terminate this Agreement upon the Customer becoming Insolvent.

12. Payment – Refund Policy:

After work on a website commences advances are not refundable.

13. Payment Methods:

Unless otherwise agreed, payment is only accepted by direct bank deposit or cheque. If payment is made by cheque, then works corresponding to the payment will commence upon clearing of the cheque payment funds in Digital Garden’s account.

14. Payment of Balance:

Invoices are only issued corresponding to pre-defined payment milestones or pre agreed terms. Payment of invoices is required for works to commence on the quoted works. We reserve the right not to launch a website until full payment has been received.

Unless otherwise stated, payment terms for projects are as follows:

  • Our payment terms are 14 days. Typical payment milestones:
    • 40% of the total project cost will be invoiced on approval of the proposal
    • 40% of the total project cost will be invoiced upon signoff of designs
    • The final 20% due upon approval of the project, prior to pushing to your staging hosting environment
  • Travel and disbursements will be invoice as used, at cost

15. Future Support:

Your website will be handed over as a fully functioning, completed work. Unless it has been agreed beforehand Digital Garden is not responsible for future support. Support can be provided upon request for an agreed fee.

16. Grace period:

There is a 14-day grace period upon completion of the website, where all minor modifications to the site are free (for example, minor graphical changes). However, major structural, content or graphical modifications are subject to a fee. To avoid these charges, a 12 month maintenance package can be purchased at any time.

17. Access to Client Hosting Space:

We may require ongoing access to our clients’ hosting space to allow us to support and monitor their websites. This access is via a user ID and password combination, which the client may change after the website is handed over. If the client chooses to change the password we will no longer have access to the website and further support will not be possible.

18. 3rd party conflicts:

(a) If the client requires any 3rd party to access the development environment whilst the site is in production, then the agreed warranty is null and void. Correspondingly any additional work required to identify or repair any issues resulting from access by any 3rd party are not covered under any agreement between Digital Garden and the client. Any such work will be charged as extra at Digital Garden’s hourly rate, plus 20% project management costs. The same applies for the warranty period and for any period for which Digital Garden is commissioned for ongoing website maintenance.

(b) Digital Garden does not accept responsibility for any failure in any 3rd party software or other product outside of the warranty or covered service period.

(c) Digital Garden manages the website hosting accounts for certain clients. For these clients there are additional terms and conditions supplied specifically for that hosting service.

19. Legal:

If at any point during the process of the web design a designer feels that the website is going to be used for an illegitimate purpose, then Digital Garden have the right to refuse to complete the website, this is for the protection of our clients, the consumer and ourselves, as we have a responsibility to all three.

20. Malicious Attacks:

If there is any malicious activity on the website once it has been completed, then there will be additional costs to amend any issues with the website.

21. Compliance with Ecommerce, Accessibility or Other Regulations:

We design websites in accordance with the client’s specifications. It is the client’s responsibility to ensure that the website and its content comply with current online trading laws and regulations.

22. Compliance with Laws and Regulations:

We cannot accept responsibility for any failure to comply with laws and regulations related to accessibility, selling online or those related to a specific business or trade. We can research this on the client’s behalf upon request, but in any business where complex compliance issues may exist we recommend that the client takes legal advice from their company lawyer or other relevant 3rd party service provider.

23. Website Security:

We cannot accept responsibility for any security breaches or malicious activities that adversely impact on the live website. Digital Garden can advise upon request how the client can better secure their website. This may include implementing project specific security measures, and may also include referring the client to a dedicated 3rd party security service provider.